Silverado Modjeska Recreation & Park District v. County of Orange

I.

Introduction

It is undisputed that larvae of the arroyo southwestern toad—an endangered species—were observed 328 feet from the project site, and adult toads were seen in the same general area, after the original environmental impact report (EIR) circulated. The original EIR had concluded that the project would not result in a direct or indirect impact to any species listed as threatened or endangered, and specifically, that the probability that the arroyo toad was present at the project site was “very low” because the habitat was not suitable. Despite the subsequent discovery of this endangered species so close to the project site, and despite having conceded in the supplemental EIR (SEIR) that the post-EIR sightings of arroyo toad tadpoles in the immediate vicinity of the project site constitute “new information,” the County of Orange (County) contends that it was not required to recirculate the SEIR to address the potential impact of the project on this endangered species, and disingenuously maintains that, “it is unclear from the record whether arroyo toads exist near the project.”

Under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et…

In this case we consider an environmental review process which commenced in 2002. During the course of that process the developers of a residential real estate project prepared an environmental impact report (EIR) which was certified by a county board of supervisors in 2003. The EIR was challenged in a prior writ proceeding and as a result of the challenge a writ was issued compelling the county and the developers to prepare a supplemental EIR (SEIR) which more thoroughly considered the impact of the project on water quality. The SEIR was circulated and certified in 2007.

Appellants contend that in this second proceeding under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 1 § 21000 et seq.) they had the right to challenge the developers’ and the county’s compliance with the prior writ compelling them to prepare and circulate the SEIR which considered the impact of the project on water quality. We reject this contention. An order discharging the earlier writ and determining the 2007 SEIR properly evaluated whether the project’s impact on water quality was otherwise adequate was entered in the prior proceeding and became final during the pendency of…